England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
AT NEWCASTLE UPON TYNE

		The Family Court at Newcastle Upon Tyne Law Courts, The Quayside Newcastle Upon Tyne NE1 8QH Start Time: 12:08 hours Finish Time: 12:50 hours
		11th October 2017

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HIS HONOUR JUDGE SIMON WOOD:

1. The Court is concerned with the welfare of A, a girl born on 4^th December, 2010, and therefore a couple of months short of her seventh birthday.
2. The local authority on 27^th March issued an application seeking a care order and it now presents a plan to secure A's future welfare by way of a care order with a plan of long-term foster care, a plan that is supported by A's children's guardian, Julie Doyle, a plan that is supported by A's father, F, but opposed by her mother, M, who seeks a return of A to her care.
3. Why does the local authority say that A was suffering, or likely to suffer, significant harm, and that the harm or its likelihood was attributable to the care being provided to her not being that which it would be reasonable to expect the parents to give a child?
4. The application set out succinctly four matters by way of threshold. The, first, the Mother's mental health difficulties which, it is said, prevent her from providing safe, secure and consistent parenting. Second, that since 5^th December, 2016, A has experienced three separate periods of foster care due to deterioration in the Mother's mental health, being taken into police protection on two of those occasions. Thirdly, that A is thereby at risk of physical and emotional harm due to the consequential, erratic and unpredictable behaviour of the Mother to which she has been exposed. Finally, that the Father had failed to take action to keep the child safe from harm.
5. The aspect which is central to the Court's determination is of course the Mother's mental health, to which I will come in looking at the background history. The Mother was born in 1975 in Nigeria. She came to the United Kingdom on a student visa in 2009 when she met and had a short relationship with A's father. A was conceived and born towards the end of 2010.
6. The Mother with A went back to Nigeria in 2011 on her student visa expiring, but she returned a year later and obtained work as a healthcare worker, the job that she ultimately was forced to leave because of the requirement upon her by the UK Border Agency to leave the United Kingdom on her application to remain being refused.
7. Her immigration status remains precarious and it is the other central aspect to this case. It remains unresolved, the Mother having sought asylum status in March of this year. That particular claim is as yet unresolved and the Mother would say that her immigration situation is directly relevant to the issue concerning her mental health.
8. It was a mental health assessment on 4^th December, 2016 that brought A and the Mother to the attention of the local authority for the first time. She attended Accident and Emergency and was observed to be acting strangely, suggesting that A might be possessed, worried that people were hurting her and she then refused to leave the hospital following a community psychiatric nurse assessment that concluded that the Mother had no specific mental ill-health. History repeated itself the following day when, after spending a night hanging around the centre of the city with A, the Mother was found to present as paranoid and agitated to the extent that she had to be sedated following a struggle with the police. As a consequence, A was placed in foster care, seemingly with the Mother's agreement.
9. I am not going to detail each and every subsequent incident but a pattern was thereby established that followed very much the events of 4^th and 5^th December. The Mother got better for a time. A was intended to be returned to her care in the middle of December, but she failed to collect her from school and had to be returned to foster care, the Mother presenting in a very similar way to that that had been apparent a week or so before and she was in fact admitted to hospital under Section 2 of the Mental Health Act.
10. A was returned to the Mother's care in the middle of March, but ten days later there was a further episode characterised in particular by paranoia. It all came to a head on 24^th and 25^th of March where the residential setting where the Mother had been living with A reported extreme concern regarding the Mother's mental health. A was again taken into police protection, following which the Mother trashed the place where she was living. She refused to agree to A being accommodated. So, on 27^th March, proceedings having been issued, the Family Court made an interim care order permitting the local authority to place A in foster care.
11. A has remained in foster care ever since. But this litigation has followed an unusual course principally driven by the Mother's behaviour which has continued to fluctuate.
12. As I have mentioned, the Mother applied for asylum shortly after the making of the interim care order, a hearing which she failed to attend, at that stage not engaging either with her solicitor or the local authority. At some point thereafter the Home Office moved her to accommodation in a neighbouring county, during the course of which the local authority was able to carry out a parenting assessment of the Mother.
13. Towards the end of June however, her engagement and her mental health again became the subject of concern, with repeated reports by a number of people. That was all despite a generally encouraging report from a psychiatrist, Dr. Thorpe, in early June that suggested, in line with the repeated clinical assessments that had been carried out following acute episodes, that the Mother had no formal or diagnosable mental health condition over and above an adjustment disorder and associated depression, secondary to her unresolved immigration status, lack of employment and the social difficulties that flowed from that. The symptoms included anhedonia, low mood, disturbed sleep, diminished appetite and reduced self-esteem. Dr. Thorpe felt that the Mother had at the time of her assessment recovered, was mentally well, did not have any need for treatment and had a positive prognosis overall, including in respect of her regaining the ability to care for her daughter.
14. Meanwhile, A's father had been found. He has engaged with the litigation. He has, insofar as his work has permitted, resumed contact, taking into account the distance that he has to travel to see her, albeit he has reached the conclusion that he is not in a position to put himself forwards a carer for A, a decision that he has made, I know, with considerable sadness.
15. At the Issues Resolution Hearing on 4^th August the Mother did not attend and the Court received concerning information that she had not been seen since the previous hearing on 21^st June, having prior to then been a consistent attender at contact with A, contact from which she had seemingly withdrawn.
16. Information from the county where she was living suggests that all was not well. The pastor's wife reported that the Mother was isolated and behaving strangely. The police reported threatening behaviour towards those in the accommodation where she was living, including an incident with a knife, and an attempt at carrying out street triage was impossible because the Mother locked herself in a room. She then, seemingly, disappeared. She resurfaced back in this city and the local authority was able to restart contact, albeit that was not without difficulty. The Mother stopped going to contact, she said because of the unhappiness that she felt over a dress that A was wearing at the last contact that she attended. There were several hearings and several local authority encounters where it was reported that the Mother was totally focussed on this issue to the exclusion of any other and was unable really to explain what it was about the dress or any other aspect of contact that had caused her to have this reaction. The Court therefore ordered further psychiatric assessment. To the surprise of the professionals, and the Court, Dr. Thorpe substantially confirmed her opinion in mid-August, albeit agreeing that there had been a relapse in the Mother's mental health and identified a probability that she was not engaging in support or accessing or consistently engaging with treatment, further assessment in mid-September noted in particular a guarded approach and minimization of the issues reported, for example by the police and the local authority, as well as demonstrating a lack of insight into the concerns that all professionals had about her behaviour. Nevertheless, Dr. Thorpe found that there was no evidence of depression or psychosis, but said this,

"It appears likely that [M] is experiencing another episode of mental illness. I remain of the opinion that her ongoing and unresolved asylum application, as well as the fact that her daughter remains in foster care, is having a significant, deleterious effect upon her mental health. In addition, it appears that she has not complied with antidepressant medication and is isolating herself, which will clearly impact upon her presentation and ability to cope with stress."

The prognosis really remained very much as before, but it was clearly dependent upon her engagement with professionals. That, therefore, is the background.

17. Before analysing the issues, however, I need to say something about the procedure that has been adopted in this litigation. As is evident from the history that I have related thus far, this mother has only engaged inconsistently with aspects of the litigation. She did, to her credit, engage with Dr. Thorpe. She took part in the parenting assessment. She attended a good deal of contact until she stopped in late June. She has also attended a number of court hearings. She filed an initial statement and then, more recently, another one accepting that she had not seen A, she said, since 5^th July. In that statement she asked for A to be returned to her care and indicated that it was her plan to return to Nigeria with her daughter. I do not know whether the statements were ever signed, neither copy I have is, but she failed to file the final statement that she was ordered to file on 28^th September and thus there is no more evidence from her for the Court.
18. She attended court when the case was listed for final hearing yesterday but with the Court's agreement left to go and attend upon her general practitioner. She returned from that appointment. Just what the nature of the appointment was remains wholly unclear, but the Court had been anxious to let her attend it not least because if it was going to have an impact on her mental health, it might have been of considerable importance.
19. On her return she informed her counsel, Miss Phillips, that she needed more contact with A, she needed time to think and she was not really prepared for a final hearing. The Court adjourned the matter yesterday for two principal reasons: one was to ensure that she had appropriate advice and an opportunity to prepare herself for this hearing today, as well as to enable her to go to contact that was prearranged for yesterday afternoon. She went to that contact, but today, despite the efforts of her solicitor and her counsel, each of whom have separately spoken to her, she has not attended court, has indicated her opposition to the care plan, has repeated her request that A be returned to her care and has asked for more contact, a request which is not really understood as to whether it is more contact before an order is made or more contact in the event that an order is made. But, be that as it may, she also firmly indicated that she does not intend to attend this hearing today.
20. As mentioned, the Father has already reached the conclusion that a return to the Mother's care is not an appropriate course for A's welfare. The local authority, strongly supported by the children's Guardian, urges the Court to finalise these proceedings for A's sake today and Miss Phillips finds herself in the difficult position of having no meaningful instructions from her client.
21. The Court has had to consider anxiously how to deal with this matter, but reminds itself that Dr. Thorpe has consistently found that this mother has litigation capacity, most recently on 14^th September. There is no evidence before the Court that the Mother is engaging with any treatment, still less is there any kind of prognosis in respect of that. This pattern of behaviour has now recurred for more than ten months and there has, in truth, been no sustained or reliable recovery during that period.
22. Meanwhile, A has been in foster care, she is thriving and doing as well as she possibly can be in foster care. It is an encouraging thing that she has been able to remain in the same placement. It is the local authority plan that that will continue if an order is made. But she has a pressing need to have her future decided.
23. This has been a difficult decision, but the Court is here faced with an intelligent mother who can well and appropriately meet her daughter's needs when she is in good health. The problem is that she plainly is not well, she has not been for significant parts of the last ten months, and there is no indication that she will be at any specific point in the future. Were there to be before the Court evidence of engagement with treatment, and I am mindful of Dr. Thorpe's remarks as recently as the middle of last month, together with some sign of progress and improvement, the Court emphasises it would have bent over backwards to give her the chance to get well enough for A to be returned to her care. Sadly, there is quite simply there is no such evidence. There is no indication that an adjournment of any given duration will result in the position being any different to that before the court today. So, for those reasons, the Court has reluctantly been driven to the conclusion that the local authority and the guardian are correct and that this application must now be determined at a point already beyond the twenty-six weeks that parliament directed that such application should be decided.
24. In those circumstances the Court was not asked to hear any oral evidence, no party had any question to ask of any witness. SW, who has been the social worker throughout, prepared a detailed parenting assessment, which included a risk assessment, which I have read and take fully into account. In reaching her conclusion, she said this,

"During this assessment, there have been many positives highlighted in respect of the relationship between M and A. They are considered to have a close and loving relationship and speak of their loss and sadness at their present separation. When M is well, she is thought to meet A's basic, emotional and physical care needs well. Despite financial constraints M has accepted help and support from services to provide a home for A to live in. It is therefore all the more saddening that there remain concerns around M's ability to keep A safe from physical and emotional harm when she experiences deterioration in her emotional wellbeing. A continues to be at risk of emotional harm from witnessing her mother being incoherent, confused, paranoid and anxious. A is furthermore at risk of physical harm from being kept outside or in public areas during the cold winter months and due to M potentially being unable to safeguard A from any risky people they may encounter at these times. Safety and protection remain the highest concern in respect of A's wellbeing when she is in her mother's care. It is the unpredictability and severity of the episodes that place A at high risk of significant harm. The outcome of M's immigration status remains outstanding with no estimated outcome date. Until such time that M has achieved her desired goal of a legal right to remain in the United Kingdom, the risk that A remains unmanageable, given its spontaneity and onset and non-existent support network."

25. The Mother, as the Court has indicated, has provided very little evidence of her own. Her most recent request to be permitted to return to Nigeria with her daughter has itself caused the professionals a degree of alarm, given her earlier statement that she was fearful of a return to Nigeria because of the inherent insecurity there, specifically the risk of kidnap and armed robbery, and she in terms indicated that she would be frightened for both her and A's futures were she to do so, those no doubt being factors that have been prayed in aid in support of her asylum application. As the local authority points out, it is simply a further underlining of the lack of insight that Dr. Thorpe identified for the Mother now to be indicating that that is where she wishes to go.
26. Care proceedings involve two principal questions. First of all, are the threshold criteria for making a care order under Section 31 of the Children Act satisfied? Secondly, if so, what order should the Court make? It is not disputed in this case that the threshold criteria under Section 31 are satisfied for the reasons that the Court has outlined and does not propose to repeat. The Court, therefore, has to consider the second question which is the welfare decision that needs to be made for A. There is no dispute as to the legal principles that have to be applied. It is of course for the local authority to prove on the balance of probabilities for the facts upon which they seek to rely. It is for the local authority, in applying for a care order, to satisfy the Court that on consideration of the welfare checklist in Section 1(3) of the Children Act that the order that it seeks is that which best meets the welfare needs of A.
27. Before considering the alternatives that were placed before the Court, the Court should note that in terms of alternatives the Mother at an early stage indicated that her sister, who resided in the United States of America, might be able to care for A. There are, of course, fairly formidable practical difficulties in achieving placements with family members in the United States of America but those did not even arise in this case because several attempts that were made to contact that lady, via the contact details provided by the Mother to the social worker, failed. Nor did she contact the local authority at any stage to indicate that she was willing and able to care for A. I have already mentioned that the Father ruled himself out as a carer at an earlier stage. Finally, whilst there is extensive family in Nigeria, no family member has come forwards, either at the Mother's suggestion or spontaneously, to offer to care for A. In those circumstances the options left for the Court's consideration are a return of A to the Mother's care or a care order.
28. In favour of the Mother's proposal, plainly, first of all, the Mother loves A very much indeed and that is love which is reciprocated. Secondly, when well this mother is able to care for A very well indeed, as the parenting assessment highlighted. Thirdly, family relations will obviously be maintained intact.
29. Set against that, first of all, there is the risk of the repetition of the harm and neglect demonstrated by the history that the Court has outlined. Secondly, that risk is heightened by the lack of evidence that the Mother is presently well, or indeed even getting better. Thirdly, there is a complete lack of any mechanism for identifying triggers of the onset of poor mental health were the Mother to get better, thus putting A at considerable risk were she in her care. It is quite simply not a case where support could easily be put in place by way of a safety net in such circumstances.
30. In favour of the making of a care order, first of all it is clear that A will be kept safe and that her day to day care and her physical needs will be met. Secondly, she will be carers who are familiar to her, who have been assessed and matched with her as her long-term carers and therefore there will be minimal change in her day to day living arrangements. Thirdly, there is no likelihood of her being exposed to the risk of significant harm. Fourthly, she will have a good chance of growing up safely with her needs met, and, fifthly, she will be able to maintain regular contact with each of her mother and father.
31. Set against that, A will become a looked after child with all that that brings: it can be stigma, it can be intrusive, it is not a normal upbringing in the usual sense of the word. Secondly, there is of course no guarantee of stability however well-intentioned the foster carers may be, their circumstances can and do change and whether it is capable of being sustained for the rest of her minority, simply cannot be identified with any confidence at this stage.
32. The local authority and the children's guardian have comprehensively assessed and analysed these realistic options for A's future care and the Court accepts their analyses. The Court, unfortunately, cannot have any confidence that either now or at any time in the identifiable future the Mother will be able safely and reliably to meet A's needs. Indeed, the Court would go further: it is satisfied that, absent that, A is likely to be exposed to significant harm again.
33. In those circumstances the balance falls decisively in favour of the making of a care order to secure A's future. It is a very sad outcome indeed. But the Court is satisfied that it is the only one that is justified on the evidence before it, and that it not only complies with the welfare checklist with particular reference to the Mother's capacity to meet A's needs and keep her safe from harm, but also with the Article 8 right to family life under the European Convention. It is a proportionate order.
34. The local authority proposes that A should continue to have regular contact with her mother and with her father. So far as the Mother's contact is concerned, that is presently proposed at once a month. It was submitted on the Mother's behalf that whilst to maintain a frequency of once a week might be excessive, it would be more reasonable to direct that contact be fortnightly at this stage. Within the limitations of what the Court can do in making a final care order, where so much in the future so far as the Mother is concerned is uncertain, the Court does not accede to that submission on the basis that there has recently been a prolonged period of no contact at all (to A's considerable disappointment). Until such time as the Mother's mental health and reliability improves, it seems to the Court that the priority has to be in securing A's placement within her foster placement on the change of status that will be brought about by today's order. At the end of the day, contact has to be kept under review and the local authority is under a statutory duty to do so. If the Mother is well and if monthly contact is not meeting A's needs, I will expect it to be reviewed upwards. I am afraid the converse is true as well. But the balance, it seems to the Court, is rightly struck at once a month at this stage. It is, at the end of the day, almost always easier to increase contact than reduce it.
35. So far as the Father is concerned, he lives a considerable distance away from this city and he works, and he has encountered considerable difficulty in taking time from work in order to have contact, which has been supervised during the week in accordance with local authority contact supervision availability. It is very much his wish for contact to take place at the weekend and ideally in the community. One of the matters that the local authority will look into in the near future is the ability and willingness of the foster carers to facilitate such contact, certainly whilst it requires to be supervised.
36. The point is made on behalf of the local authority that if the foster carers are supervising contact, it prevents it from carrying out an assessment of contact with a view to reaching a decision as to whether it can move to being unsupervised and in the community. Therefore, I invite the local authority to draw up a written plan as to what assessment will look like, over what period of time it will take place and for it and the Father armed with that to enter into discussions, he having spoken to his employers and considered what holiday entitlement he has now or at some point in the foreseeable future, with a view to that assessment taking place.
37. On the face of it there do not appear to be any safeguarding issues, there do not appear to be any compelling reasons as to why A should not be able to enjoy time with her father in the community, and if by having that time at weekends it increases the chance of contact taking place regularly, then it really has everything to recommend it. I anticipate I will hear some more about this when I have concluded this judgment.
38. This order, which is a long-term order, the Court needs to stress, can be reviewed. If the Mother gets better and can demonstrate, over a period of time, that her mental health is good and reliable and that she is managing her mental health issues appropriately, it will of course be open to the local authority, or indeed to her, to seek to change the plan in the future. So, in what I know will be a disappointing outcome for the Mother, I hope that that point is drawn to her attention.
39. There is, however, I am afraid, no current indication that this will happen at all, still less when, but it does need to be said in the extremely distressing circumstances that the Court has outlined. Therefore, the Court approves the local authority plan, it makes a care order in respect of A and I invite the local authority to apply in the usual way for a transcript of this judgment to be prepared.